RDL - Salem, VA v. Ronnie Ryan Richardson ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Bray
Argued at Richmond, Virginia
RDL - Salem, VA
MEMORANDUM OPINION * BY
v. Record No. 0565-95-3 JUDGE JAMES W. BENTON, JR.
FEBRUARY 20, 1996
RONNIE RYAN RICHARDSON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Monica L. Taylor (Melissa W. Scoggins;
Christopher M. Kite; Gentry, Locke, Rakes &
Moore, on brief), for appellant.
Carr L. Kinder, Jr., for appellee.
RDL - Salem, VA contends that the Workers' Compensation
Commission erred in reversing the deputy commissioner's
credibility determination and in finding that Ronnie Ryan
Richardson continued to be disabled after October 29, 1992. We
affirm the commission's decision.
Applying the usual standard of review, we view the evidence
in the light most favorable to the party prevailing below. R.G.
Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d
788, 788 (1990). In addition, on appellate review, we must
uphold factual findings made by the commission if those findings
are supported by credible evidence. James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
We find no merit in the employer's contention that the full
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
commission inappropriately disregarded the deputy commissioner's
credibility determination. The record establishes that the
deputy commissioner's "credibility" finding was based only on a
conflict in testimony on an immaterial issue. The deputy
commissioner chose not to believe Richardson's testimony that he
was fired from his employment. Instead, the deputy commissioner
accepted the testimony of Richardson's supervisor that Richardson
quit his employment. In finding no continuing disability,
however, the deputy commissioner based that determination on his
analysis of the evidence. This Court has held that if the deputy
commissioner makes a "credibility" finding based on the substance
of the testimony or other evidence in the record, that issue is
"as determinable by the full commission as by the deputy."
Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 383, 363
S.E.2d 433, 438 (1987). In such cases, the commission has no
duty to explain its reasons for accepting the testimony of one
witness over another. Bullion Hollow Enterprises, Inc. v. Lane,
14 Va. App. 725, 729, 418 S.E.2d 904, 907 (1992). The sole issue
before this Court is whether credible evidence supports the
commission's finding that Richardson continued to be partially
disabled. Id.
The record contains ample credible evidence to support the
commission's findings. The evidence proved that on June 30, 1992
while making a delivery in Charlotte, North Carolina, Richardson
slipped on a piece of cardboard, fell, and injured his back.
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Richardson was admitted to a medical center in Charlotte, where
Dr. Samuel J. Chewning diagnosed disc herniation at the T11-12
level and performed a decompressive laminectomy and diskectomy.
Both parties stipulated that Richardson suffered a compensable
injury.
As instructed by Dr. Chewning, Richardson had follow-up care
in Roanoke with his family physician, Dr. E. W. Watts, Jr. In
August of 1992, Richardson was referred to Dr. Ralph O. Dunker,
Jr., a neurosurgeon. The record supports the commission's
finding that "[o]n September 29, 1992, Dr. Dunker noted that
[Richardson] was to continue in physical therapy, and that '[h]e
has not seen any overall progress, but in fact it has not
worsened either.'" Dr. Dunker also noted that "light duty" might
begin in two weeks. On October 29, 1992, Dr. Dunker released
Richardson to return to light duty work and stated that "he
should be on an air-ride tractor to minimize the jolting and
shock." Richardson testified that he returned to work and
experienced continued pain.
Dr. James M. Leipzig, an orthopedic surgeon, who examined
Richardson in 1993, also reported that Richardson described
persistent back pain. Although Dr. Leipzig could find no
"mechanical anatomic reasons" to explain Richardson's continued
back pain, the record supports the commission's findings that "an
MRI and x-rays . . . revealed multiple bulging discs as well as
loss of disc space and water content." Dr. Leipzig referred
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Richardson to Dr. Murray E. Joiner, a rehabilitation specialist.
Based upon his impressions of "chronic low back pain status post
thoracic laminectomy" with possible "symptom magnification," Dr.
Joiner recommended a pain clinic and a functional capacity
evaluation.
When Richardson injured his back on April 11, 1994, while
lifting his two year old grandchild, he was examined at a
hospital emergency room. Dr. Evelyn W. Manetta noted
Richardson's history of work-related injury with persistent low
back pain and diagnosed acute back strain. Dr. Manetta
recommended Richardson see an orthopedist.
Upon this evidence, we conclude that credible evidence
supports the commission's findings. Richardson consistently
described his physical condition to all physicians who examined
him from September 1992 through August 1994. Moreover, the MRI
and x-ray that Dr. Leipzig ordered in 1993 indicated numerous
problems at the T11-12 level, the same area where Dr. Chewning
operated after the compensable injury by accident. All of these
problems were discovered prior to the aggravation of the injury
on April 11, 1994. Thus, the record contains ample credible
evidence from which the commission could find that Richardson
continued to experience pain consistent with his injury and
reported history of low back pain.
We, therefore, affirm the commission's findings that
Richardson had a continuing disability, that Richardson's doctor
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released him to perform light duty work, and that Richardson has
not marketed his residual work capacity.
Affirmed.
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